Opinion
DOCKET NO. A-3372-14T2
01-26-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. C.J.—P., Defendant-Appellant, and E.E. and R.N., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF J.J., L.E., C.E., and R.N., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa Raksa, Assistant Attorney General, of counsel; Cynthia J. Schappell, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Danielle Ruiz, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Ostrer, and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-06-15. Joseph E. Krakora, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa Raksa, Assistant Attorney General, of counsel; Cynthia J. Schappell, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Danielle Ruiz, Designated Counsel, on the brief). PER CURIAM
Defendant, C.J.-P., whom for the sake of anonymity we refer to as Kathy, appeals from a March 6, 2015 Family Part order terminating her parental rights in her four youngest children, for whom we also use pseudonyms: J.J. (Rita) born May 2002; L.E. (Mary) and her twin C.E. (Susan), born December 2004; and R.N. (Patty), born September 2010. We affirm, substantially for the reasons stated by Judge Peter E. Warshaw, Jr., in his oral opinion rendered after the three-day trial.
A fifth and oldest child, R.J., is not involved in the matter.
The identity of Rita's father is unknown.
The biological father of Mary and Susan is not involved in the appeal.
Patty's father, R.D.N., executed an identified surrender to the foster parents. After the guardianship judgment was entered, however, he filed a motion to revoke his surrender, which was denied. He has subsequently appealed, but the matter has not been calendared for hearing.
The evidence is described in detail in the judge's opinion and need not be repeated here. Suffice it to say that the Division's attention was drawn to the family in January 2012 when the United States Marshals raided Kathy's home, seized crack cocaine and drug paraphernalia, including a scale, and arrested her husband, A.P. Mary told a Division worker that Kathy sold pills from the home. Kathy was later arrested on outstanding warrants.
Kathy's oldest child was subsequently discovered to possess a video of his mother engaged in sexual activity with multiple partners. Thus began the Division's futile efforts at providing many services to Kathy, including in- and out-patient drug treatment, drug monitoring, parenting services, and mental health therapeutic services.
Even while seemingly engaged in treatment, Kathy continued to test positive for cocaine, PCP, marijuana, and oxycodone. She was briefly incarcerated for shoplifting while the proceedings were pending, and then a second time for burglary. The disposition of those matters is unknown.
Ultimately, by November 2014, Kathy's sporadic attendance at supervised visits with her girls stopped altogether. She was well aware that the guardianship proceeding had been filed in July 2014 after the termination of the abuse and neglect case filed against her.
Kathy, who claimed to have been employed for six years as a private duty homecare aide "under the table[,]" denied any knowledge of the drug or criminal activities of the children's fathers or her husband. None of the four psychologists or psychiatrists who evaluated her found she was emotionally capable of parenting. Kathy had been treated for mental health issues, twice in an inpatient setting, was hospitalized in 2005 after attempting suicide, and claimed that when not abusing drugs she suffered from depression and anxiety. She was variously diagnosed with post-traumatic stress disorder resulting from sexual abuse inflicted in childhood, narcissistic, antisocial and borderline traits, in addition to her substance abuse issues. Kathy had no history of stable housing, employment, or relationships. Her prognosis for improvement was "poor."
Kathy had herself been in foster care as a child and gave birth to her oldest child at age fourteen.
Judge Warshaw found the testimony of Alan J. Lee, Psy.D., credible. Lee testified that because of Kathy's mental health issues, unstable relationships, residence, employment history, substance abuse, and criminal recidivism, she could not function as an independent caretaker for her children in the foreseeable future.
Not surprisingly, the children struggle with significant emotional and behavioral issues. They require therapeutic intervention and, at times, medication. They have experienced difficulty adjusting to resource home placements since their October 2012 removal from Kathy's care.
The bonding evaluations Dr. Lee conducted between Kathy and the children demonstrated an absence of any significant connection. In his opinion, there was a "low risk of the [four children] suffering severe and enduring psychological or emotional harm if [the] relationship with [their] birth mother [was] permanently ended." During the bonding evaluations, Kathy became easily frustrated with the children, and did not even consistently interact with them.
At the time of the trial, then-twelve-year-old Rita had been in her specialized treatment home for approximately two months. Because of behavioral difficulties, no satisfactory placement had yet been found. The Division had not discussed adoption with the current resource parent, and the Division's plan was select home adoption.
Eight-year-old Mary had been in a resource home for approximately two years with a parent who wished to adopt. Her twin Susan, however, had been in a group home since approximately September 2014. Mary's resource parent expressed an interest in adopting both girls if Susan successfully completed treatment.
Four-year-old Patty had been in the same resource home since removal in October 2012. Although her resource parents did not wish to adopt, they had friends who did. The Division had just licensed that family, although no final decision had been reached.
In order to prove that termination is in the best interest of the child, the Division must demonstrate, by clear and convincing evidence, the following four factors:
(1) The child's safety, health[,] or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
4) Termination of parental rights will not do more harm than good.
[N.J.S.A 30:4C-15.1(a)(1) to (4).]
Review of the Family Part's factual findings and credibility determinations in a termination of parental rights matter is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We accord a trial court's factual findings and credibility determinations substantial deference where supported by "adequate, substantial, [and] credible evidence[.]" Potomac Ins. Co. of Ill. v. Pa. Mfrs. Assoc. Ins. Co., 215 N.J. 409, 421 (2013) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). We accord this deference to the trial judge because of his or her ability "to make first-hand credibility judgments about the witnesses who appear on the stand[.]" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Trial courts possess a "feel of the case" we cannot acquire on a cold record. Ibid. For that reason, a trial court's factual determinations are only overturned when "clearly mistaken" or "wide of the mark[.]" N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Even then, the decision to overturn is based on the conclusion it is required to avoid a miscarriage of justice. State v. Johnson, 42 N.J. 146, 162 (1964). Where we are satisfied that the trial court's findings do not rise to this level of error, we do not disturb the outcome even if we may have reached a different conclusion. Ibid.
Given our standard of review, we do not address Kathy's points related to the court's alleged errors as to prongs one and three of the statute, as they are so lacking in merit as to not warrant much discussion in a written opinion. R. 2:11-3(e)(1)(E).
Judge Warshaw found that Kathy was unable to manage her own instability, both emotional and functional. She could not tolerate frustration and was chronically angry. He gave great weight to the expert testimony and reports that Kathy's "recidivistic poor parenting" meant she could not "protect, guide[,] or offer consistency" to her children. Thus, we agree the children's well-being would "continue to be endangered by the parental relationship."
Nor do we address Kathy's point that the Division did not make "reasonable efforts to effect reunification." The Division offered her a host of services, none of which were completed or which resulted in meaningful change. Even as the case progressed, Kathy continued to abuse drugs, and stopped visiting her children after months of inconsistent appearances.
We do address Kathy's points regarding prongs two and four of the statutory test. Parental unfitness may be established through proof the parent is "unwilling or unable to eliminate the harm[,]" or that "separati[on of] the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child[.]" N.J.S.A. 30:4C-15.1(a)(2). The second prong of the statute may be satisfied by a parent's recurring drug use and inability to provide a stable and protective home. In re Guardianship of K.H.O., 161 N.J. 337, 353 (1999).
A parent's continued drug relapses while guardianship proceedings are pending are a significant consideration in assessing prong two. See E.P., supra, 196 N.J. at 104-05. Here, in addition to ongoing substance abuse, Kathy was unable to obtain stable housing, engage in mental health services, or even appear at scheduled visits with the children.
Additionally, the bonding evaluations between mother and children indicated a very weak bond. Kathy's conduct during the bonding sessions was inappropriate, and she seemed unable to interact with her children during the sessions.
When Kathy discontinued seeing the children, she also failed to maintain contact with the Division itself. Thus Kathy has not demonstrated that she can offer the children any form of stable and safe environment. See K.H.O., supra, 161 N.J. at 353-54.
The Division made diligent efforts to not only provide services for Kathy but to locate relatives willing and able to provide homes for the children. No family alternatives existed.
Furthermore, no expert supported reunification. In fact, Dr. Lee opined that the prognosis for Kathy achieving stability even on her own was poor. That three of the four children lack adoptive parents in the offing does not make reunification achievable. It is not.
Kathy's final point is that the lack of prospective adoptive families for all the girls means that termination of parental rights will not do more harm than good, and in fact will hurt the children. In this case, however, it is abundantly clear that returning them to Kathy is not an option.
Any further delays would therefore only add to the harm despite any uncertainties regarding adoptive homes for three of the four girls. The children's chances of enjoying the permanency to which they are entitled, and that the courts are statutorily bound to provide, are increased only by freeing them for adoption. In this case, Kathy's ongoing drug use, lack of stable housing or employment, and lack of motivation regarding the children, means there is no hope of permanency if parental rights are not terminated.
Dr. Lee opined that termination of parental rights would not harm the children because of the lack of meaningful bond between them and their mother. While there is uncertainty regarding adoption as to three of the children, it is certain that Kathy will be unable to care for her family in the foreseeable future. The children need permanency, and have no likelihood of achieving a stable and secure environment if left in their mother's care. On the other hand, there is a possibility of a safe, secure, and stable home offering the children permanency if freed for adoption.
By the time of the trial, Kathy had not seen the children for approximately four months. As the judge observed, she had "zero ability to care for the[] children, and that ha[d] gotten progressively worse and it [wa]s sliding downhill fast." Despite the unknowns, termination would not do more harm than good.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION